The answer seems obvious. The employer must decide what hours of work are best for producing its products or serving its customers, and employees must maintain regular and reliable attendance during those hours. In fact, non-exempt employees are paid by the hour because they only provide value for the company when they are at work and performing their assigned tasks.

So attendance would seem to be an “essential job function,” which need not be altered when an employer is considering an employee’s request for reasonable accommodation under the Americans with Disabilities Act (“ADA”) and the similar Connecticut state law. But attendance as an essential function cannot be treated as a rigid rule.

In the recent case of McMillian v. City of New York, decided by the Second Circuit Court of Appeals last March, a case manager for the City’s Human Resources Administration took regular medication which made him drowsy in the morning, and for 10 years his supervisors overlooked chronic tardiness in reporting to work. When the supervisors abruptly switched and started requiring timely attendance, the employee asked for a later starting time as an accommodation, which was denied. He sued, and the court decided that the issue of accommodation was at least an open question (that is, summary judgment was denied) because lateness had been tolerated for years, and the need for the employee’s presence at a precise time in the morning was not proven. Also, as so often happens in ADA cases, the employer was criticized for not engaging in the interactive process with the employee.

The take-away from this case is that even a request for different working hours cannot be dismissed out of hand. The interactive process is beneficial to employers, not only because it is required by law, but because it lets the employer analyze the accommodation request and prepare a business rationale if the request is going to be denied. It also avoids having a disciplinary decision look like a supervisor’s whim, which is never going to impress the court if litigation ensues.

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